IP law: undemocratic, totalitarian, and unethical
Linked by Thom Holwerda on Sat 30th Jun 2012 19:34 UTC
Legal Yesterday, we were treated to another preliminary injunction on a product due to patent trolling. Over the past few years, some companies have resorted to patent trolling instead of competing on merit, using frivolous and obvious software and design patents to block competitors - even though this obviously shouldn't be legal. The fact that this is, in fact, legal, is baffling, and up until a few months ago, a regular topic here on OSNews. At some point - I stopped reporting on the matter. The reason for this is simple: I realised that intellectual property law exists outside of regular democratic processes and is, in fact, wholly and utterly totalitarian. What's the point in reporting on something we can't change via legal means?
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lemur2
Member since:
2007-02-17

I get the impression that you don't like software patents at all, why? What in principal is different about owning the legal rights to a piece of code or software design compared to say owning the rights to a novel or a piece of music?


A novel or a piece of music can be protected by copyright, but not by patents. There is no issue with software copyright ... if one wants to make a competing software product one should write one's own code rather than selling a literal copy of someone else's code, in exactly the same way that if one wants to be a best-selling novelist, one should write one's own novel and not copy the words of another writer.

No problem with that, copyright is fine as IP protection for software, just as it is for writing or music. Note that Android is not a copy of iOS, it is a work-alike. No, the problem is software patents.

Having software patents is akin to disallowing Harry Potter novels from ever being written because someone else had earlier written a novel about a young male wizard character named, say, Merlin growing up. No more lullabys ever to be allowed to be written except for the one by Brahms.

Insanity of the highest order, and totally inappropriate.

What about hardware patents? Are some OK but some not? In which case what are the dividing lines?


There are very reasonable dividing lines in European law:
https://en.wikipedia.org/wiki/Patentable_subject_matter


The following in particular shall not be regarded as inventions within the meaning of paragraph 1:

(a) discoveries, scientific theories and mathematical methods;
(b) aesthetic creations;
(c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers;
(d) presentations of information.


You will note that software is excluded twice since software is "programs for computers" and it also is "mathematical methods".

Suppose someone sets up a company and makes shoes that look just like the latest Nike shoes and has a logo on them that looks very similar to a Nike logo and uses a product name similar to the Nike shoes? Should Nike have the opportunity to claim in court that their designs are being infringed?


Now you are getting very confused indeed, and totally silly. You are talking now about another totally different IP law called trademark. Android does not infringe on Apple's trademark ... no one can possibly confuse a little comic green robot icon for an apple.

Edited 2012-07-01 23:59 UTC

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